211 Wis. 613 | Wis. | 1933
Lead Opinion
The following opinion was filed April 11, 1933 :
There is no dispute that the bond in suit originally bound all the parties to it to payment of the checks drawn by Mr. Klatte against his deposits. The issues may best be treated by taking up successively the points relied on by the defendant sureties to relieve them of this obligation.
(1) Mr. W. B. Rubin contends, and the circuit court ruled in his favor, that his notice of withdrawal effected his dis
Guaranties for payment of purchases of goods to be made in the future are construed as continuing offers to guarantee payment of each purchase as a separate transaction, accepted when the sale is made. So construed, the offer, like an offer of guaranty on a single contract, may be withdrawn at any time before it is accepted. So of guaranties to banks to procure credit for future loans. Gay v. Ward, 67 Conn. 147, 34 Atl. 1025, 32 L. R. A. 818. The latter follows, by implication, from First Nat. Bank v. Wunderlich, 145 Wis. 193, 130 N. W. 98. The contract in suit is of the same nature. The offer continues as to each deposit until revoked, and the making of the deposit constitutes an acceptance of the offer as to that deposit, and binds the sureties who have not withdrawn their offer to repayment of that deposit.
(2) The sureties other than Mr. Rubin all contend that his release discharged them, and the trial court decided in their favor upon the theory that the contract was a joint contract and that the rule at common law was that the release of
This is a several contract as well as joint. The withdrawal of Mr. Rubin did not destroy the several nature of the contract. Each surety had the option to remain on the contract or withdraw from it as he saw fit. The sureties all received notice of Mr. Rubin’s withdrawal. Notwithstanding their right to withdraw, none of them, after receiving notice of Mr. Rubin’s withdrawal, saw fit to exercise it. By their conduct in not withdrawing, the sureties acquiesced in remaining on the contract notwithstanding Mr. Rubin’s withdrawal. By not withdrawing they lulled the plaintiff into believing that they elected to remain on the bond and prevented the procuring of a new bond, as he doubtless would have done had they all or several of them exercised their right of withdrawal. In this situation the sureties are es-topped from claiming that they are not bound by the bond.
The contention of the respondents that the withdrawal of Mr. Rubin discharged them from the bond is based on cases of executed, not continuing, contracts of guaranty. If one guarantees a particular obligation of another, as the payment of a note, he has no right to withdraw his guaranty. He is absolutely bound by his executed contract. His obligation is complete. In case of a continuing guaranty, there is no reason for holding that the withdrawal of one surety shall operate as a withdrawal of the other. What the one has done the other may do. Why should one surety’s withdrawal be construed, as matter of law, as doing for another what the other may do for himself if he so wishes ? There is no call for the law to grant relief from an obligation to one who has in his hands the means of effecting his own relief. Why should the law do for one what he may do for himself ? The reason for the rule that effects the release of a co-surety,
This conclusion is contrary to that of the Minnesota court relied on by the trial judge, in Stone-Ordean-Wells Co. v. Taylor, 139 Minn. 432, 166 N. W. 1069, L. R. A. 1918 E, 93. It is, however, in full accord with that of the Idaho court in Washington County v. Wieser Nat. Bank, 43 Idaho, 600, 255 Pac. 310. In the latter case a statutory bond was involved, but the withdrawal of the surety was effected by notice as here, and we do not see that the distinction stated affords reason for rejecting the case as supporting authority. The Minnesota case applied the rule applicable to executed contracts imposing absolute liability to payment, which, as above pointed out, we consider not applicable to a case of continuing as distinguished from executed guaranties.
(3) The heirs of Mr. Reichert, the deceased surety, contend that his death revoked his contract. There is conflict of authorities on this point. A good part of the seeming conflict is due to a failure to distinguish between the nature of a completed or absolute guaranty and a guaranty that is continuing. Thus contracts guaranteeing the conduct of an agent, in case he is appointed by a principal pursuant to an offer of guaranty made by a surety, have been held to be completed or executed contracts of guaranty. This is the theory on which the following cases hold that such a contract binds the estate of a deceased surety for defaults of the agent
(4) The other sureties contend that the death of Reichert operated to discharge them. If Rubin’s withdrawal did not so operate, it is not perceived why the withdrawal of Reichert through his death should discharge them. Besides, a discharge of a co-surety by operation of law does not operate to discharge his co-sureties. Brandt on Suretyship, 263; 50 Corp. Jur. p. 188. The discharge of Reichert by death was a discharge by operation of law.
Whether knowledge by the other sureties of Mr. Reichert’s death is requisite in order that they be held upon the bond is perhaps a further question. That not withdrawing on receiving notice of Mr. Rubin’s withdrawal constitutes acquiescence in remaining, is our expressed basis for holding the sureties bound by the contract notwithstanding his withdrawal. The evidence shows that defendants J. H. Rubin and Joseph Crowley knew of Mr. Reichert’s death. Judge Karel, as county judge, presumably knew of it. They acquiesced in remaining on the bond, as they did on Mr. Rubin’s withdrawal. There is nothing to indicate whether
(5) The defendants contend the bond continued in force only for a reasonable time and that time has expired. It may be that a continuing guaranty that a purchaser of goods will pay therefor remains in force only for a reasonable time. But the contract in suit is not such a guaranty. It is a contract of suretyship. While the obligation of a guarantor and of a surety are alike in that both are bound for another, a surety is bound by the same instrument as is the principal and his obligations are in all respects coextensive with those of the principal. A guarantor’s contract is separate from that of his principal, and he is bound only by the terms of his own contract. The contract in suit became effective immediately upon the signing of it and the depositing of money by Klatte and acceptance of the deposits by the bank, and it continued and was contemplated to continue indefinitely. By the contract the bank expressly agreed to repay the deposits on presentation of checks drawn against them by Klatte, and the sureties’ obligation was the same as that of the bank. There can be no doubt that as long as Klatte and the bank continued to operate under the contract the bank was bound to pay as agreed. The sureties were bound to the same extent.
(6) The term of the bond was for one year. This contention is based on the fact that a statute at the time in force, sec. 717, Stats. 1917, relating to county depositories, provided that the term of the bond given by such depositories
(7) The plaintiff has not proved any damages as the banking commissioner may eventually repay the deposit in full. This point is ruled against the-defendants by the recent case of Schlesinger v. Schroeder, 210 Wis. 403, 245 N. W. 666.
(8) Demand was not made until after the bank was taken over by the banking commissioner, after which compliance with the demand was prevented by law. This claim is without merit. The obligation of the bond is to pay checks on presentment. Presentment was made. Payment was refused. The cause of the inability to pay is immaterial.
(9) A statutory change in the law relating to the duties of Klatte as-clerk of the civil court increased the obligation of the bank and thereby released the sureties. The statute referred to, ch. 202, Laws of 1923, did not in any way effect such increase. The amendment merely authorized the clerk to deposit county funds in banks instead of with the county treasurer, and required him in case of such deposits to pay the interest received from the bank thereon to the county treasurer.
(10) The deposit of more than $20,000 by Klatte at times in 1920 and 1921 -released the sureties. This contention is based on the rule quoted in the respondents’ brief from 50 Corp. Jur. pp. 166, 167, as follows:
“If a surety has annexed conditions, to be performed by the creditor or obligee after the contract has been entered into, a failure to perform them releases the surety from liability.”
The provisions relied on as bringing the case within the rule stated is a recital in the bond that the bank had been selected as a depository of funds received by Klatte not to exceed at any time $20,000. The penalty of the bond was $20,000. The provision was manifestly inserted for the pro
(11) The appellant by paying the judgment for costs in favor of Mr. Rubin waived his right of appeal. This claim is without merit because the payment, being made after execution was issued, was manifestly not a voluntary payment. For a payment of a judgment to justify refusal of this court to entertain an appeal it must appear clearly and conclusively that the payment was made to settle the controversy and voluntarily made with a view to such settlement. Plano Mfg. Co. v. Rasey, 69 Wis. 246, 34 N. W. 85. The dismissal as to Rubin was ordered on motion for a directed verdict, and Rubin entered judgment thereon without waiting for determination of the motions of the other defendants made after verdict. The judgment first entered in favor of Rubin was afterwards vacated by the court in order that one judgment might be entered'disposing of all the issues, but this did not affect the fact that payment of the judgment previously made was not voluntary.
From the above it follows that the judgment must be reversed as to all defendants except W. B. Rubin, the bank, the commissioner of banking, and the heirs of John Reichert.
By the Court. — The judgment of the circuit court is affirmed as to the defendants W. B. Rubin, Franklin State Bank, Thomas Flerreid as commissioner of banking, Lisetta Reichert, Carl Reichert, and Evelyn Reichert. As to the other defendants it is reversed with instructions to enter judgment in accordance with the complaint.
Rehearing
The following opinion was filed June 6, 1933 :
(on motion for rehearing). Counsel for respondents present a courteous and lawyer-like brief upon motion for rehearing, entirely free from the faultfinding and caustic criticisms which quite frequently of late have been indulged in by disappointed counsel for movants, and “assume” that the matters discussed in the opinion of the court “were given careful consideration, and that further presentation” of their “views would be unavailing,” and merely ask relief in respect of matters not called to the attention of the court in their original briefs, and therefore not discussed in the opinion.. Their restraint is commendable and we appreciate their respectful deference to our judgment. They merely ask, and quite properly, (1) that the court modify its mandate to permit the trial court to pass upon their alternative motion for a new trial because the finding of the jury'on the question submitted to them in respect of their notifying the plaintiff of their withdrawal from the bond in suit is not supported by the evidence; and (2) that the court expressly declare whether the liability of the bondsmen, if
(1) The defendants Crowley, J. H. Rubin, and Bitker filed in writing an alternative motion for a new trial on the ground above stated in event that judgment in their favor be not granted. The defendant Karel did not filé a written motion, but on the oral argument joined in the motion of his codefendants. The trial court in granting the motion for judgment did not pass upon or express any opinion concerning this alternative motion, but refrained therefrom because he deemed it “unnecessary” to do so.
Counsel for movants cite several cases in support of their proposition that the motion for a new trial should be determined by the trial court, all of which except Moody v. Milwaukee E. R. & L. Co. 173 Wis. 65, 180 N. W. 266, were decided before sec. 2878, Stats., now sec. 270.49, was amended by ch. 477, Laws of 1917, by adding thereto that if motions for a new trial were not passed upon by the trial court within sixty days, or within such time as hearing thereon had been extended by order of the court, they should be deemed denied. The Moody Case, decided in 1920, which remands the case with direction that the trial court determine the motion for a new trial, makes no mention of this amendment, and was apparently decided without consideration of it. In Miller v. Paine Lumber Co. 202 Wis. 77, 93, 227 N. W. 933, 230 N. W. 702, doubt was expressed whether the trial court had power, under the statute as it stands in the Statutes of 1931, to pass upon a motion for a new trial after remittitur from this court, and it was suggested that the Advisory (Rules) Committee consider putting the matter beyond controversy. This has now been done by adding to sec. 270.49 a proviso that (as applied to the instant case) if an alternative motion for a new trial be made in connection with a motion for judgment and the trial judge grants the motion for judgment without expressly deciding the motion
It is urged in opposition to the request to change the mandate that in our original opinion we decided that the evidence supported the verdict. It is true we said that “The jury found against the defendants on this point, and the question was clearly for the jury.” However, the matter was not argued "in the briefs and the portions of the record bearing upon the point were not called to our attention. We shall not enter into any statement or discussion of the evidence bearing upon the. point, but will merely say that we are now persuaded that it is such that the trial judge should determine whether in view of it a new trial should be granted to the defendants and the mandate will be changed accordingly.
(2) We consider that each defendant ultimately bound will be liable for the entire amount of the deposit. As between themselves, liability for contribution may exist, but that point is not before us and we do not assume to decide it. Sec. 269.53, Stats., is referred to by movants in support of their contention, as is the case of Hallock v. Yankey, 102 Wis. 41, 78 N. W. 156, construing that statute. The statute is to the effect that a creditor may release one or more joint debtors from their proportionate share of the indebtedness. The releases here involved were not releases by the creditor (Klatte). The release was by operation of law as to the Reichert heirs and by act of the surety himself as to W. B. Rubin. The terms of the statute therefore do not apply. The Hallock Case, supra, applies the statute to a case of two sureties jointly bound with the principal on a note of a corporation. One of the sureties who was an officer of the corporation procured from-the creditor an extension of time for
As counsel have presented in the briefs filed on the motion for rehearing their views upon the questions raised, we perceive no reason for ordering a reargument of these questions.
The motion for rehearing is denied, without costs. The original mandate is modified by striking therefrom the provision for entry of judgment and substituting therefor a provision directing the trial court to determine the motion of the respondents for a new trial.